Lawsuit Raises New Questions About Attica

Almost 18 Years after the bloodiest prison uprising in American history, a lawsuit is raising new questions about Gov. Nelson A. Rockefeller's decision to order the police assault that led to the deaths of 39 men at Attica on the morning of Sept. 13, 1971.

The suit, to be argued before the Federal appeals court in Manhattan on June 1, is reopening a bitter debate about whether Mr. Rockefeller bowed to political pressure to retake the prison instead of listening to advice about less bloody ways to end the five-day rebellion.

In six minutes, under a thick cloud of tear gas after the state police moved in at 9:43 that morning, 10 hostages and 29 prisoners were killed. Three hostages and 85 prisoners were wounded, and the name Attica became synonymous with tragedy. Rockefeller Termed Indifferent

The events that led to what one court called the ''orgy of violence,'' were among the most investigated in New York history. But in sworn statements recently added to a pending class-action suit filed in 1975 on behalf of the Attica prisoners, two prominent New Yorkers have provided new accounts of conversations they had with Mr. Rockefeller before the assault.

The sworn statements assert that on the afternoon before the attack, the Governor was indifferent when he was told that there were alternatives to storming the prison and said he had to bow to pressure for an assault despite the consequences to prisoners and guards held hostage. Liberal Image

The accounts could shed new light on a controversy that dogged the former Governor and Vice President until his death in 1979. At the time of the rebellion, the Governor was a potential candidate for President but his liberal image was considered a handicap.

Lawyers for the prisoners say the statements show he approved the assault to position himself for a race for the White House. Lawyers for Mr. Rockefeller's estate, which is named in the lawsuit although he was a public official, say the assertions are nothing more than the opinions of two men who never offered them when Mr. Rockefeller was alive.

The two are Herman Badillo, a longtime public official who was a Representative from the Bronx in 1971, and Clarence B. Jones, who was the editor and publisher of The Amsterdam News, a weekly black newspaper. Both men went into the prison as observers at Governor Rockefeller's request. 'Inevitability of a Massacre'

Mr. Badillo is now practicing law in New York and Mr. Jones is a business executive.

Mr. Jones's statement says the Governor ''clearly accepted the inevitability of a massacre, and the question was not whether it would occur, but when. . . . During the phone conversation Governor Rockefeller was indifferent to our report to him that the situation was not hopeless, and that much could still be done to avoid disaster.''

In 1972, the New York State Special Commission on Attica criticized the Governor for remaining at his Pocantico Hills summer home near Tarrytown, N.Y., throughout the uprising.

But Mr. Rockefeller always maintained publicly that he had followed his usual practice of relying on his appointees. Experts Say Details Are New

Both Mr. Badillo and Mr. Jones were questioned extensively by investigators and reporters after the uprising. Both have said they talked on the telephone with Mr. Rockefeller the afternoon before the assault, pleaded with him to come to western New York and warned him of the dangers of mass killings if the police moved in. Many of the guards were being held on catwalks with knives at their throats. Later investigations showed that all 10 hostages and 29 inmates killed that day were hit by police gunfire.

But experts on the Attica investigations, including Robert B. McKay, the former New York University Law School dean who headed the State Commission, say the Badillo and Jones accounts include new details and cast the conversations with Mr. Rockefeller differently.

Lawyers for the plaintiffs said they believed they had pressed Mr. Badillo and Mr. Jones more closely about details of their conversation with Mr. Rockefeller than investigators had earlier, and the statements are more detailed than what they had said earlier.

In late 1987, after the Rockefeller estate asked a judge to dismiss it as a defendant, the prisoners' lawyers reinterviewed Mr. Badillo and Mr. Jones, questioning them closely about their conversation with the Governor. 'Stack of Telegrams'

''It seems to me,'' Mr. McKay said in an interview, ''that they have refreshed their recollections in a way that they did not testify before the commission.''

Mr. Badillo's statement says: ''Rockefeller responded that he had a stack of telegrams on his desk urging him to storm the prison and that there was overwhelming political pressure and sentiment to send in the troops. Rockefeller indicated to me that he had no choice but to accede to that pressure regardless of the consequences to the hostages.''

''I remember very clearly,'' Mr. Badillo said last week, ''he was arguing very vehemently that he had to go in because he was getting political pressure.''

Two other observers, State Senator John R. Dunne and Tom Wicker, a New York Times columnist, also spoke to the Governor during the same hourlong telephone call on the day before the police assault. They were not re-interviewed by the prisoners' lawyers in 1987. Other Observers

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Through a press secretary, Mr. Dunne, a Republican of Garden City, L.I., said last week that he could not recall the details of the conversation.

Mr. Wicker recalled Monday that Mr. Rockefeller ''was not impressed by the various things we said to the point of changing his mind.'' But he said the phone call involved each of the four men handing the receiver to the next as each finished. Because he had not heard Mr. Jones or Mr. Badillo's conversations, Mr. Wicker said, he could not be certain what Mr. Rockefeller had said to them.

The case is a reprise of the era in which it was born. It has languished in the courts since it was filed in 1975 by a group of self-described ''movement'' lawyers who styled themselves the Attica Brothers Legal Defense. A handful of them are still pursuing it. Class-Action Suit

Opposing them is a firm that could not be more of the establishment -Milbank, Tweed, Hadley & McCloy, which has seen the Rockefeller family and its Chase Manhattan Bank through decades of challenges.

The class-action suit was filed to win compensation for the 1,200 men who were in Attica's D-Yard at the time of the assault. The suit named 13 other state officials, including Russell G. Oswald, who was the State Correction Commissioner at the time.

But from the beginning, the Governor's wealth represented a source of potential damage payments. More important, the lawyers for the prisoners said, he symbolized the abuse of power that they believed led to the killings.

The law generally protects state officials from personal liability for the performance of their duties unless they take actions they know are reasonably likely to violate someone's constitutional rights and they ''wantonly'' decide to violate those rights anyway.

Last September, a Federal District judge in Buffalo, John T. Elfvin, ruled that ''it cannot be held that Rockefeller knew or reasonably should have known that his approval of Oswald's decision to retake D-Yard would or reasonably could have resulted in any unconstitutional activity.''

But the prisoners' lawyers have told the Court of Appeals that Judge Elfvin erred by overlooking the statements of Mr. Jones and Mr. Badillo that were added to the court record shortly before the decision. Lawyer Cites Evidence

They argue that the unconstitutional activity was the knowledge that the killings could have been avoided.

For the first time, said Michael Deutsch, the chief lawyer for the prisoners, they had evidence showing that what they had always believed was true.

''He was told specifically there would be a massacre,'' Mr. Deutsch said, ''and, basically, he said, 'Go ahead. Let it happen.' ''

In his argument before the appeals court, William E. Jackson, representing Mr. Rockefeller's estate, says the Attica investigations support Judge Elfvin's decision. But in his legal papers, he did not directly dispute the Jones and Badillo statements.

Asked why, Mr. Jackson responded in a letter that said the assertions had been made only after Mr. Rockefeller was dead and that there was no other testimony supporting them.

When it takes up the case next month, the appeals court will be asked, in a sense, to try to answer a question for history - one that some believe can never really be answered.

Arthur O. Eve, the Buffalo-area Assemblyman who is now deputy speaker of the Assembly, said he had always been convinced that Mr. Rockefeller had made a cold political calculation that accepted the killings as inevitable.

But Mr. Eve said he was not sure that history would ever prove that.

''Only God knows fully,'' he said, ''and Rockefeller has gone with him now.''

Correction:

Thursday, Late City Final Edition Because of an editing error in some copies, an article yesterday about a lawsuit arising from the Attica prison uprising of 1971 gave an incorrect account of how guards and inmates died when the prison was stormed by the police. Investigations showed that police gunfire killed all 10 hostages and 29 inmates who died when the prison was retaken. None had their throats slit.

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A version of this article appears in print on May 17, 1989, on Page B00001 of the National edition with the headline: Lawsuit Raises New Questions About Attica. Order Reprints|Today's Paper|Subscribe